By Frances Webber
A report on the UK Border Agency’s management of foreign national offenders bears little reaction to the press’ coverage.
‘The 5,000 crooks we can’t deport’: was the Sun headline which was repeated, with more or less polite variations, across Britain’s press on 27 October, from the Express to the Guardian, the message all the papers deemed to be the story behind Chief Inspector of the UKBA John Vine’s report. The message conveyed by the headline is one of embodied menace: threatening alien criminals who can’t be got rid of roaming our streets.
This is not the main story in Vine’s report. He does complain that although UKBA officials know how difficult and time-consuming it is to get emergency travel documents from certain embassies, they appear incapable of starting the process during prisoners’ sentences, so that deportations are needlessly delayed for months. But his main complaint against UKBA is the ‘fear and reluctance to release’ FNPs at the end of their sentence, which means that 97 per cent of a sample of 97 prisoners were held under Immigration Act powers at the end of their sentence and that by January 2011 the average length of post-sentence detention had gone up to 190 days – that is six months and ten days. Over a quarter of those detained are now held for over a year. Only 109 FNPs were released by immigration officers, while over 1,100 were released on bail by the courts (which are themselves extremely wary of releasing persons whom the UKBA wants to deport). Vine refers to a ‘culture where detention is the norm’ despite official policy of a presumption in favour of liberty, where authority to detain resides with a fairly junior officer, while authority to release must be sought from a far higher grade. It is, too, a culture of disrespect, where FNPs are frequently left in the dark about the progression of their cases, and sometimes about the reason for the decision to deport them; where confidential details of unrelated third parties are contained in files for no reason and details of acquitted foreign nationals are not deleted from the system, in disregard of data protection laws. The report deprecated these failings, and recommended that UKBA get better at releasing FNPs.
Vine found a similar aversion to risk, and disrespect for FNPs’ rights, in the way UKBA staff deal with their applications to stay. Nearly a third of FNPs’ appeals were successful in the year to January 2011, mostly on human rights grounds. Bearing in mind how cautious the courts are about allowing offenders’ appeals against deportation, this is a high proportion of appeals (425 in number). UKBA had granted permission to stay to only 151 offenders, prompting Vine to recommend that the officials pay more regard to factors such as family ties, the welfare of UK-born children, and conditions in the proposed destination country to reduce the disparity.
But what the inspector sees as a defect in officials’ attitudes and training, the right-wing press and politicians see as a defect in the courts, which they claim are allowing too many human rights appeals by undeserving criminals. No matter what inspectors say, and no matter how meticulously the courts assess the evidence before releasing FNPs or allowing their appeals, the media bang the same old anti-Human Rights Act drum, ever more insistently. Foreign prisoners don’t have rights, they say, providing vociferous support for home secretary Theresa May and immigration minister Damien Green’s mission to allow family and private life rights to be diluted or bypassed in order to deport FNPs.
Senior judges captured
And now, Britain’s senior judges are repeating the mantra. The Lord Chief Justice, Lord Judge, and the presiding Supreme Court judge, Lord Phillips, neither known as the strongest human rights defenders in the judiciary, told the Joint Parliamentary Committee on Human Rights that the UK’s courts should not follow rulings of the European Court of Human Rights so closely. Philips also claimed that Article 8 of the European Convention on Human Rights, which requires public bodies to respect individuals’ private and family life, was ‘baffling’ for judges, despite rulings by the Supreme Court under the leadership of his predecessor Lord Bingham which were hailed as models of clarity, humanity and wisdom. The two judges told the committee that the European Human Rights Court should have to give permission before cases are brought there – a baffling observation in the light of the fact that well over 95 per cent of applications to the court are rejected at a very preliminary stage and a further four per cent or so are weeded out as ‘inadmissible’. Echoing the campaign of the Right, the judges called for much greater freedom for British judges in interpreting and applying the Human Rights Convention.
 John Vine, Chief Inspector of UKBA, ICIUKBA Annual Report (http://icinspector.independent.gov.uk/wp-content/uploads/2011/02/ICIUKBA-Annual-Report-2010_11-final-web.pdf) (pdf file,1.3mb).  ‘UK courts following European human rights rulings too strictly, judges warn’, Guardian, 15 November 2011.